In Nucci v. Target Corp., the Fourth District Court of Appeals ruled that Facebook photographs sought by the defense attorney were reasonably calculated to lead to the discovery of admissible evidence and the privacy interest in them was minimal, if any. After falling in a Target store, Maria Nucci had to file a lawsuit for her damages against Target. As in most personal injury lawsuits, Nucci claimed bodily injuries, pain and suffering, and other damages. When Target's attorney first viewed Nucci's Facebook profile, it contained 1,285 photographs. At a later deposition, Nucci's attorney objected to disclosing her Facebook photos for privacy reasons. Two days later, her Facebook profile listed 1,249 photos. Target's lawyers asked the Court to compel inspection of Nucci's Facebook profile simply because Nucci's lawsuit put her physical and mental condition at issue. Nucci's attorneys argued that her Facebook privacy setting prevented the general public from accessing her account and that she had a reasonable expectation of privacy regarding her Facebook information. The trial court agreed with Target's attorney and ordered the production. Nucci's attorneys appealed the ruling to Florida's Fourth Distract Court of Appeals.
A few weeks ago, the Fourth DCA issued their opinion and sided with Target. In its opinion, they stated that "In a personal injury case where the plaintiff is seeking intangible damages, the fact-finder is required to examine the quality of the plaintiffs life before and after the accident to determine the extent of the loss. From testimony alone, it is often difficult for the fact-finder to grasp what a plaintiff's life was like prior to an accident. It would take a great novelist, a Tolstoy, a Dickens, or a Hemingway, to use words to summarize the totality of a prior life. If a photograph is worth a thousand words, there is no better portrayal of what an individual's life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Such photographs are the equivalent of a "day in the life" slide show produced by the plaintiff before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the lawsuit." Thus, the Fourth DCA determined that the production order was not overly broad because it was limited to two years prior to the incident to the present. As to the privacy issue, the Court held that "[b]efore the right to privacy attaches, there must exist a legitimate expectation of privacy." Apparently, the privacy setting on Facebook was not enough.
I am not sure if the result would have been different if the Plaintiff in this case did not remove photos from her Facebook profile after her deposition. In any event, this case tells all of us – attorney and the public – that if you post photos on Facebook, they can be used against you years later if you are ever injured because of the negligence of another person or entity.
Be smart on what photographs you post on Facebook.
Personal Injury Attorney Matthew Noyes represents those injured in car accidents, motorcycle crashes, bicycle accidents, pedestrian accidents and other types of personal injury matters. His Clearwater law firm – Perenich Caulfield Avril Noyes – is one of the oldest personal injury law firms in Pinellas County. Call Attorney Matthew Noyes now at 727-796-8282 or simply click here to schedule a free case consultation.